Reporters' Privilege - Department of Justice Guidelines

Department of Justice Guidelines

The United States Department of Justice created self-imposed guidelines intended to protect the news media by regulating the use of subpoenas against the press. These guidelines state that "all reasonable attempts should be made to obtain information from alternative sources” after considering issuing a subpoena to a member of the news media. Furthermore, the guidelines require that federal prosecutors negotiate with the press, explaining the specific needs of the case.

Before any subpoena may be issued, the attorney general must approve the issuance. The attorney general’s review for a subpoena to a member of the news media shall be based on the following criteria:

• In criminal cases, there should be reasonable grounds to believe, based on information obtained from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation—particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
• In civil cases there should be reasonable grounds, based on non-media sources, to believe that the information sought is essential to the successful completion of the litigation in a case of substantial importance. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
• The government should have unsuccessfully attempted to obtain the information from alternative non-media sources.
• The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.
• Even subpoena authorization requests for publicly disclosed information should be treated with care to avoid claims of harassment.
• Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents.

While these guidelines seem extremely protective of the press, they explicitly deny the creation of “any legally enforceable right in any person.” Nor does the policy have any substantive punishment for the federal government violations. If the federal prosecutors fail to obtain approval from the attorney general, the extent of the authorized punishment is “an administrative reprimand or other appropriate disciplinary action.” In fact, some courts have found that the guidelines “create no enforceable right.” Therefore, in circuits taking this approach, the news media have no right to appeal for enforcement of these policies before being compelled to testify.